ACLU sues Salt Lake City over deal with Mormon church

The Associated Press

11.17.99

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	Mormon Temple looms over what was Main Street in Salt Lake City, Utah, as construction continues on underground parking garage yesterday. Garage will be topped with pedestrian mall, which Church of Jesus Christ of Latter-day Saints promises to keep open 24 hours a day.

SALT LAKE CITY — When the city sold a downtown block of Main Street to the Mormon church and let the church decide who could protest there, it squelched free speech and violated the Constitution, the American Civil Liberties Union charged in a lawsuit.

The problem, the ACLU argues, is that the city has unconstitutionally limited access to a what has traditionally been a public forum. The church and the city, on the other hand, say the new pedestrian mall is private property and that no rights are being violated.

The Church of Jesus Christ of Latter-day Saints promised to keep the plaza unfenced and open 24 hours a day when it bought two acres from the city for $8.1 million in April.

But then the state's predominant religion handed down a long list of rules: No smoking, music, cursing, begging, bicycling, skateboarding. And none of the speechmaking that gave the area the nickname "Soapbox Corner" at the turn of the century.

"It's Main Street, and that kind of says it all," ACLU attorney Stephen Clark said after filing the suit yesterday in U.S. District Court. "The city has in effect given the church a preferred platform right in the heart of the city that is closed to everybody else. The church is free to use this property to get its own message across, while other people are treated basically as second-class citizens."

The ACLU wants the district court to declare much of the deal between the church and the city to be unconstitutional on a number of First Amendment grounds. The suit, filed on behalf of the First Unitarian Church of Salt Lake City, the Utah branch of the National Organization for Women and Utahns for Fairness, argues that the deal and the church's restrictions have "the effect of immediately extinguishing plaintiffs' and the public's First Amendment rights on the property."

The ACLU also claims that the city's sale of Main Street to the church is an establishment of religion by "giving the indelible impression that the LDS church occupies a privileged position in the community."

The debate isn't new, says John McCormick, a history professor at Salt Lake Community College. Ever since the turn of the century, when non-Mormons became half the city's population, the church has tried to reassert its authority.

"Salt Lake City is what may be called a contested site," McCormick said. "Who's Salt Lake going to belong to? Who will have a voice and who won't, and what position will groups occupy in the city? The sale of Main Street fits right into that."

"The mere appearance of joint authority by church and state gives a symbolic benefit to the church," said Jerome Barron, a law professor at George Washington University.

That's what the Supreme Court decided in Larkin v. Grendel's Den in 1982. In that case, the court overturned a Massachusetts law allowing schools and churches to say no to liquor licenses granted within 500 feet of their property. By giving churches a veto power over zoning boards, the court decided, the state created "excessive entanglement" with religion.

"Following Grendel, it would seem that what is being done in Salt Lake City is unconstitutional," Barron said.

But the city argues its agreement is legal. Salt Lake has sold dozens of other public streets to private entities, including downtown thoroughfares that now dead end at the Salt Palace Convention Center and the Crossroads Mall.

The Mormon church agreed.

"All legal requirements, including those set forth in the U.S. Constitution, were satisfied before the property was transferred," church officials said in a written statement.

However, even City Attorney Roger Cutler admits church involvement changes perceptions.

"It's different because of who acquired the land, different because of the visibility of Main Street," Cutler said. He said the city would try to get the church included in the lawsuit, which it might do either by filing a motion to dismiss unless the ACLU adds the church as a defendant, or by urging the court to add the church as an involuntary defendant.

Mayor-elect Rocky Anderson has indicated he would rather reach a compromise than force a lawsuit, Cutler said. One possibility might be to waive the easement if the church demands a refund, because the money — more than $13 million including earlier payment for an underground parking garage — has already been budgeted.